PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee, v.NENITA B. HU,Accused-Appellant.

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari filed by accused-appellant Nenita B. Hu (Hu) seeking to reverse and set aside the Decision1 of the Court of Appeals dated 9 October 2007 in CA-G.R.-CR.-H.C. No. 02243, affirming with modification the Decision2 dated 4 January 2005 of the Regional Trial Court (RTC) of Makati City, Branch 66, in Criminal Case No. 03-356. The RTC in its Decision found Hu guilty beyond reasonable doubt of the crime of illegal recruitment in large scale, as defined and penalized under Section 7(b) of Republic Act No. 8042,3 and accordingly, sentenced her to suffer the penalty of life imprisonment, to pay the fine of P500,000.00, and to indemnify private complainants Paul Abril (Abril), Joel Panguelo (Panguelo) and Evangeline Garcia (Garcia) in the amounts of P44,000.00, P50,000 and P50,000, respectively. The decretal part of the assailed Court of Appeals Decision reads:

Wherefore, in the light of the foregoing disquisitions, the decision of the Regional Trial Court of Makati City, Branch 66, in Criminal Case No. 03-856, finding appellant Nenita B. Hu, guilty beyond reasonable doubt of the crime charged, is hereby AFFIRMED with MODIFICATION.

As modified, the award of actual damages in the amount of P50,000 in favor of Evangeline Garcia, is DELETED.4

The antecedent facts are as follows:

An Information5 for Illegal Recruitment in Large Scale was filed against Hu and Ethel V. Genoves (Genoves) which reads:

That on or about the 9th day of October 2001, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and both of them helping and aiding one another, did then and there willfully, unlawfully and feloniously recruit, promise employment/job placement abroad for an overseas employment and collect fees from the following persons to wit:

NOEL P. DELAYUN

JOEY F. SILAO

JOEL U. PANGUELO

PAUL C. ABRIL

EVANGELINE E. GARCIA

ERIC V. ORILLANO

thus in large scale amounting to economic sabotage without any license or authorized by the POEA of the Department of Labor and Employment to recruit workers for an overseas employment.

Upon arraignment, Hu assisted by counsel entered a plea of not guilty while Genoves remained at large.7 Subsequently, trial on the merits ensued. While the Information for illegal recruitment named several persons as having been promised jobs by Hu and Genoves, only four of them - Panguelo, Garcia, Abril and Orillano - - testified.

Hu was the President of Brighturn International Services, Inc. (Brighturn), a land-based recruitment agency duly licensed by the Philippine Overseas Employment Agency (POEA) to engage in the business of recruitment and placement of workers abroad, with principal address at No. 1916 San Marcelino St., Malate, Manila. Brighturn was authorized by the POEA to recruit, process and deploy land-based workers for the period 18 December 1999 to 17 December 2001.8

Genoves worked as a consultant and marketing officer of Brighturn. Aside from her stint at Brighturn, Genoves was also connected with Riverland Consultancy Service (Riverland), another recruitment agency located at Room No. 210, LPL Building, Sen. Gil Puyat Avenue, Makati City.

Private complainants Orillano, Panguelo, Abril and Garcia sought employment at Brighturn for the positions of factory worker and electronic operator in Taiwan.9 Notwithstanding private complainants' compliance with all of the pre-employment requirements, including the payment of placement fees, they were not able to leave the country to work abroad.

Sometime in June 2001, Panguelo was informed by a friend that Brighturn was hiring factory workers for Taiwan. When Panguelo went to Brighturn, he was promised employment abroad by Hu for P50,000.00. Upon Hu's instruction, Panguelo paid in full the placement fee in the amount of P50,000.00 to Genoves. The payment was evidenced by an Official Receipt dated 16 October 2001 bearing Genoves' signature. Panguelo waited for three years to be deployed to Taiwan. His waiting was all for naught. Thus, Panguelo decided to abort his application and demanded from Hu the return of the amount he paid for the placement fee, but Hu could no longer return the money.10

Also sometime in September 2001, Abril went to Brighturn to apply as a factory worker in Taiwan. At Brighturn, Abril was entertained by Hu who oriented him on the necessary requirements for application which included a valid passport, National Bureau of Investigation (NBI) Clearance and ID pictures. After complying with the documentary requirements, Abril was required by Hu to pay the placement fee to Genoves in the amount of P44,000.00. As shown in Official Receipts dated 9 October 2001 and 26 October 2000, which were signed by Genoves, Abril paid the whole amount of P44,000.00 as placement fee. Abril was assured by Hu that he would be deployed to Taiwan by December 2001 which was subsequently reset to April 2002. Despite several postponements, Abril was not able to leave the country.11

For his part, Orillano came to know of Brighturn thru Genoves. Orillano was interviewed at Brighturn by a Taiwanese principal in October 2001. After the interview, Hu informed Orillano to submit a medical certificate, NBI clearance and passport; and to pay the requisite placement fee in the amount of P50,000.00. Believing that Hu could send him abroad, Orillano faithfully complied with these requirements including the placement fee, the payment of which was made to Genoves at Brighturn's office. Despite such payment, however, Orillano was not able to leave the country.12

Garcia suffered the same fate as her co-applicants. In April 2002, Garcia applied as Electronic Operator at Brighturn wherein she was entertained by Hu who informed her that Brighturn's license was suspended. Garcia was then referred by Hu to Best One International (Best One), another recruitment agency likewise located in Malate, Manila. While Garcia was told by Hu that the processing of her documents would be done at Best One, the placement fee, however, should be paid at Brighturn. Accordingly, the amount of P60,000.00 was paid by Garcia to Hu and Genoves as placement fee upon Hu's instruction. Almost predictably, the promise of an employment abroad never came to pass.13

When Hu was not able to refund the amounts paid as placement fees upon demand, private complainants went to NBI to file a complaint for illegal recruitment against Hu and Genoves.

For her defense, Hu claimed that she was the President of Brighturn, a duly authorized land-based recruitment agency. Brighturn had foreign principals in Taiwan who were looking for skilled individuals willing to work in a foreign country. Hu alleged that Brighturn had an established recruitment procedure wherein applicants were only required to pay the corresponding placement fees after the POEA had already approved their employment contracts. According to Hu, announcements were posted all over Brighturn's premises warning job applicants to pay placement fees only to the cashier. After the expiration of its license issued by the POEA on 18 December 1999, Brighturn failed to pursue its application for renewal due its inability to post the required cash bond. Brighturn was thus constrained to refer all pending applications to Best One.14

Hu admitted knowing the private complainants because these individuals went to her office demanding the return of their placement fees by showing their official receipts. Hu averred that when she examined such receipts, she found that private complainants paid their placement fees to Riverland and not to Brighturn as shown in the heading of the said receipts which bore the name and address of Riverland and its proprietress, Genoves. Hu denied knowing Genoves.15

On 4 January 2005, the trial court rendered a Decision16 finding Hu guilty beyond reasonable doubt of the crime of illegal recruitment in large scale, the dispositive portion of which reads:

WHEREFORE, the Court finds the accused Nenita Hu guilty beyond reasonable doubt of the crime of illegal recruitment in large scale under Section 6 and 7(b) of Republic Act No. 8042, and, accordingly, sentences the accused to suffer the penalty of life imprisonment, pay the fine of P500,000.00 and to indemnify private complainants Paul Abril in the amount of P44,000.00, Joel Panguelo in the amount of P50,000.00 and Evangeline Garcia in the amount of P50,000.00.

The Court of Appeals, in its Decision17 dated 9 October 2007, confirmed the presence of all the elements of illegal recruitment in large scale, and thereby affirmed the conviction of Hu with the modification that the amount of actual damages awarded to Garcia in the amount of P50,000.00 be deleted.

Hence, this Petition raising the sole issue of:

WHETHER OR NOT THE LOWER COURT ERRED IN FINDING HU GUILTY BEYOND REASONABLE DOUBT OF ILLEGAL RECRUITMENT IN LARGE SCALE.

Hu was charged with and convicted by the trial court of the crime of Illegal Recruitment in Large Scale, which conviction was affirmed by the Court of Appeals. The appellate court found that Hu made enticing, albeit empty promises, which moved private complainants to part with their money and pay the placement fee.

For its part, the Solicitor General joined the lower courts in finding that Hu was indeed guilty of Illegal Recruitment in Large Scale. According to the Solicitor General, all the elements of illegal recruitment in large scale had been established beyond reasonable doubt.18

We cannot sustain the conviction for illegal recruitment in large scale.

Illegal recruitment is committed when two elements concur, namely: (1) the offender has no valid license or authority required by law to enable him to lawfully engage in the recruitment and placement of workers; and (2) he undertakes any activity within the meaning of "recruitment and placement" defined under Article 13(b) of the Labor Code.19 Recruitment and placement is "any act of canvassing, enlisting, contracting, transporting, utilizing, hiring or procuring workers; and includes referrals, contact services, promising or advertising for employment, locally or abroad, whether for profit or not: Provided, that any person or entity which, in any manner, offers or promises for a fee employment to two or more persons shall be deemed engaged in recruitment and placement."20

The crime becomes Illegal Recruitment in Large Scale when the foregoing two elements concur, with the addition of a third element - the recruiter committed the same against three or more persons, individually or as group.21

A conviction for large scale illegal recruitment must be based on a finding in each case of illegal recruitment of three or more persons whether individually or as a group. While it is true that the law does not require that at least three victims testify at the trial, nevertheless, it is necessary that there is sufficient evidence proving that the offense was committed against three or more persons.22

In the appreciation of evidence in criminal cases, it is a basic tenet that the prosecution has the burden of proof in establishing the guilt of the accused for the offense with which he is charged. Ei incumbit probation qui dicit non qui negat; i.e., "he who asserts, not he who denies, must prove." The conviction of appellant must rest not on the weakness of his defense, but on the strength of the prosecution's evidence.23

In the case at bar, the prosecution failed to adduce sufficient evidence to prove that illegal recruitment was committed against three or more persons. What we have uncovered upon careful scrutiny of the records was the fact that illegal recruitment was committed against only one person; that is, against Garcia alone. Illegal recruitment cannot successfully attach to the allegations of Panguelo, Abril and Orillano, since they testified that they accomplished their pre-employment requirements through Brighturn from June 2001 up to October of the same year,24a period wherein Brighturn's license to engage in recruitment and placement was still in full force and effect. 25

While there were six private complainants in this case, four of whom were presented during the trial, the prosecution, nonetheless, failed to establish that Hu engaged in illegal recruitment acts against at least three of these complainants. In offenses in which the number of victims is essential, such as in the present petition, failure of the prosecution to prove by convincing evidence that the offense is committed against the minimum number of persons required by law is fatal to its cause of action. Underscoring the significance of the number of victims was the disquisition of Justice Florenz Regalado in People v. Ortiz-Miyake26 :

It is evident that in illegal recruitment cases, the number of persons victimized is determinative. Where illegal recruitment is committed against a lone victim, the accused may be convicted of simple illegal recruitment which is punishable with a lower penalty under Article 39(c)27of the Labor Code. Corollarily, where the offense is committed against three or more persons, it is qualified to illegal recruitment in large scale which provides a higher penalty under Article 39(a)28 of the same Code. (Emphasis supplied.)

Regrettably, we cannot affirm the conviction of Hu for the offense of illegal recruitment in large scale. While we strongly condemn the pervasive proliferation of illegal job recruiters and syndicates preying on innocent people anxious to obtain employment abroad, nevertheless, we find the pieces of evidence insufficient to prove the guilt of Hu beyond reasonable doubt. It is unfortunate that the prosecution evidence did not pass the test of reasonable doubt, since the testimonies of its witnesses unveil a contradicting inference - - that the recruitment of Panguelo, Abril and Orillano was undertaken by Hu with the required authority from the POEA.

Failure of the prosecution to prove the guilt of Hu beyond reasonable doubt does not absolve her of her civil obligation to return the money she collected from private complaints Panguelo, Abril and Orillano, plus legal interest in accordance with our ruling in Domagsang v. Court of Appeals.29 There, the prosecution failed to sufficiently establish a case to warrant a conviction, but clearly proved a just debt owed to the private complainant. Thus, the accused was ordered to pay the face value of the check with 12% legal interest per annum, reckoned from the filing of the information until the finality of the judgment. It is well settled that acquittal based on reasonable doubt does not preclude an award for civil damages. The judgment of acquittal extinguishes the liability of the accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. Thus, civil liability is not extinguished where the acquittal is based on lack of proof beyond reasonable doubt, since only preponderance of evidence is required in civil cases. There appears to be no sound reason to require that a separate action be still filed considering that the facts to be proved in the civil case have already been established in the criminal proceedings.30 In the present case, the prosecution explicitly proved that private complainants parted with substantial amounts of money upon the prodding and enticement of Hu on the false pretense that she had the capacity to deploy them for employment abroad. In the end, private complainants were not able to leave for work abroad or get their money back.

Neither does her acquittal herein exempt Hu from subsequent criminal prosecution for estafa31 provided that deceit, which is an essential element of estafa, be proven by the prosecution.32 Apparently, Hu deluded private complainants into believing that she had the capacity to send them abroad for employment. Through this hoax, she was able to convince private complainants to surrender their money to her in the vain hope, as it turned out, of securing employment abroad.

This leaves us a case of simple illegal recruitment committed against Garcia.

Garcia testified that she applied for employment in Taiwan for the position of Electronic Operator thru Brighturn in April 2002. Due to the alleged suspension of Brighturn's license, Hu referred her to a neighboring agency (Best One), but Hu continued collecting placement fees from her.

The act of referral, which means the act of passing along or forwarding an applicant after an initial interview to a selected employer, placement or bureau, is included in recruitment.33 Undoubtedly, the act of Hu in referring Garcia to another recruitment agency squarely fell within the purview of recruitment that was undertaken by Hu after her authority to recruit and place workers already expired on 17 December 2001.

Failure of Garcia to present proof of payment is irrelevant. The absence of receipts in the case of illegal recruitment does not warrant the acquittal of the appellant and is not fatal to the prosecution's case. As long as the prosecution is able to establish through credible and testimonial evidence, as in the case at bar, that the appellant had engaged in illegal recruitment, a conviction for the offense can be very well justified.34

Irrefragably, the prosecution has proven beyond reasonable doubt the guilt of Hu of the charge of illegal recruitment against Garcia when the former referred the latter to another agency without the license or authority to do so. The trial court gave full credence to the testimony of Garcia, which unmistakably demonstrated how Hu successfully enticed her to part with a considerable amount of money in exchange for an employment abroad which was never realized. This finding was adopted by the appellate court, considering that that the trial court was in the best position to ascertain credibility issues, having heard the witnesses themselves and observed their deportment and manner of testifying during trial.

Aptly, the bare denials of Hu have no probative value when ranged against the affirmative declarations of Garcia, even if the latter failed to present receipts for the payments she had made. In People v. Villas,35 this Court affirmed the conviction of the appellant for illegal recruitment even if private complaints were not able to present any receipt that they paid appellant anything, thus:

Neither is there merit in the contention of the defense that appellant should be exonerated for failure of the prosecution to present any receipt proving that private complainants paid her anything. The defense argues that a receipt is the best evidence to prove delivery of money and the absence thereof shows that no payment was made.

This argument is not novel. The Court has previously ruled that the absence of receipts evidencing payment does not defeat a criminal prosecution for illegal recruitment. In People v. Pabalan [262 SCRA 574, 30 September 1996], this Court ruled:

"x x x the absence of receipts in a criminal case for illegal recruitment does not warrant the acquittal of the accused and is not fatal to the case of the prosecution. As long as the witnesses had positively shown through their respective testimonies that the accused is the one involved in the prohibited recruitment, he may be convicted of the offense despite the want of receipts.

"The Statute of Frauds and the rules of evidence do not require the presentation of receipts in order to prove the existence of recruitment agreement and the procurement of fees in illegal recruitment cases. The amounts may consequently be proved by the testimony of witnesses."

The private complainants have convincingly testified that the accused enticed them to apply and, in actual fact, received payments from them. And to these testimonies, the trial court accorded credence. On the other hand, appellant has not shown any reason to justify a modification or reversal of the trial court's finding.

Our ruling in People v. Villas36 that the absence of receipts in illegal recruitment case does not warrant the acquittal of the accused has been reiterated in several cases.37 We are not unaware of the proliferation of these scheming illegal recruiters who cunningly rob Filipino workers, desperate to work abroad, of their money in exchange of empty promises. This Court cannot be drawn to the ingenious ploy of these illegal recruiters in withholding receipts from their victims in their vain attempt to evade liability.

In fine, the Court will have to discard the conviction for illegal recruitment in large scale meted out by the RTC, since only one applicant abroad was recruited by Hu without license and authority from the POEA. Accordingly, Hu should be held responsible for simple illegal recruitment only. Hu's unsuccessful indictment for illegal recruitment in large scale, however, does not discharge her from her civil obligation to return the placement fees paid by private complainants.

Under Section 7(a) of Republic Act No. 8042,38 simple illegal recruitment is punishable by imprisonment of not less than six (6) years and one (1) day but not more than twelve years and a fine of not less than two hundred thousand pesos (P200,000.00) nor more than five hundred thousand pesos (P500,000.00).

Section 1 of the Indeterminate Sentence Law provides that if the offense is punishable by a special law, as in this case, the court shall impose on the accused an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by the said law and the minimum of which shall not be less than the minimum term prescribed by the same. Accordingly, a penalty of eight (8) to twelve (12) years of imprisonment should be meted out to Hu. In addition, a fine in the amount of P500,000.00; and indemnity to private complainants - - Abril in the amount of P44,000.00, Panguelo in the amount of P50,000.00, Garcia in the amount of P60,000.00 and Orillano in the amount of P50,000.00, with 12% legal interest per annum, reckoned from the filing of the information until the finality of the judgment - is imposed.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is PARTIALLY GRANTED. The Decision dated 9 October 2007 of the Court of Appeals in CA-G.R.-CR.-H.C. No. 02243 affirming the conviction of the accused-appellant Nenita B. Hu for the offense of Illegal Recruitment in Large Scale and sentencing her to life imprisonment is hereby VACATED. A newDecision is hereby entered convicting the accused-appellant of the offense of Simple Illegal Recruitment committed against private complainant Evangeline Garcia. She is sentenced to suffer the indeterminate penalty of eight (8) years to twelve (12) years of imprisonment. She is ordered to pay a fine in the amount of P500,000.00 and to indemnify private complainant Evangeline Garcia in the amount of P60,000.00, with 12% interest per annum, reckoned from the filing of the information until the finality of the judgment.

Accused-appellant Nenita B. Hu is likewise ordered to indemnify private complainants Paul Abril in the amount of P44,000.00, Joel Panguelo in the amount of P50,000.00, and Eric Orillano in the amount of P50,000.00,with 12% interest per annum, as reckoned above.

24 On 4 March 2004, Abril testified that he applied for employment at Brighturn in September 2001 and paid his placement fee in October of the same year, to wit:

Fiscal: In September of 2001, do you recall any undertaking that is significant to your life, Mr. Witness?cralawred

Witness: Yes, sir. I applied in one of the agency in Brighturn.

Q: For what position?cralawred

A. As factory worker, sir.

Q: Where?cralawred

A: In Taiwan sir.

x x x

Q: How were you supposed to give her as placement fee?cralawred

A: I gave her Forty-four thousand pesos sir.

Q: Where did you give her this amount?cralawred

A: Riverland Consultancy in LPL Bldg. In Gil Puyat, Makati City.

Q: Do you have proof of this?cralawred

A: Yes sir.

Fiscal: Witness is handing to this Prosecutor a Xerox copy of two official receipts date October 9 and October 26, 2001 which we ask that these be marked in evidence as Exh. C and D. (TSN, 4 March 2004, pp. 5-9.)

On 11 March 2004, Panguelo also testified that he applied for overseas employment thru Brighturn in June 2001 and paid his placement fee in 16 October 2001, thus:

Fiscal: In the year 2001 of June, do you recall if you had employment then?cralawred

Witness: None, sir.

Q: And do you recall having looked for work at that time?cralawred

B. Yes, sir.

Q: Where did you apply for work at that time?cralawred

A: In Brighturn.

x x x

Q: And when you went to this office in Brighturn, to whom did you talk about your application for work, Mr. Witness?cralawred

A: Ms. Hu.

x x x

Q: So, what did the accused tell you about your employment in Taiwan?cralawred

A: She told me that I'll be sent abroad to work as a factory worker in Taiwan.

Q: And what did she ask for in return if she did, Mr. Witness?cralawred

A: Payment, sir.

Q: How much were you supposed to pay her. Mr. Witness?cralawred

A: Fifty Thousand Pesos (Php 50,000.00).

Q: And were you able to pay the accused the said amount?cralawred

A: Yes, sir.

Q: Do you have proof, Mr. Witness that you pay the said amount?cralawred

A: Yes, sir.

Q: Where it is?cralawred

Fiscal: Witness handing to the Prosecutor a Xerox copy of a receipt dated October 16, in the amount of Fifty Thousand Pesos (Php 50,000.00). (TSN, 11 March 2004, pp. 9-13.)

Orillano, on 15 April 2004, likewise testified in open court that the alleged recruitment was undertaken by Hu in October 2001.

Fiscal: Mr. Witness, what is your present occupation?cralawred

Witness: Selling vegetables, sir.

Q: In the year 2000, were you already working as a vegetable vendor?cralawred

A: No sir, only after the incident happened.

Q: What incident are you talking about, Mr. Witness?cralawred

A: When I was victimized by illegal recruitment, sir.

Q: What year is this?cralawred

A: 2001, sir.

Q: Will you tell this Court how were you victimized by illegal recruiters in this case?cralawred

A: In October of 2001, Brighturn International conducted an interview for Taiwan

x x x

Q: During your interview, what were the documents required by the accused?cralawred

A: Medical Certificate, picture, and NBI.

Q: What about fee, Mr. Witness?cralawred

A: After the submission of the documents, we were required to pay a placement fee.